Citation Nr: 0806782
Decision Date: 02/28/08 Archive Date: 03/06/08
DOCKET NO. 05-30 110 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Pittsburgh, Pennsylvania
THE ISSUES
1. Entitlement to service connection for headaches.
2. Entitlement to service connection for right knee
disability.
3. Entitlement to an initial, compensable rating for scar,
right lower lateral thigh.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
J. Hager, Counsel
INTRODUCTION
The veteran had active service from August 1970 to March
1972.
These matters come before the Board of Veterans' Appeals
(Board) on appeal from a December 2004 rating decision in
which the RO granted service connection and assigned and
initial, compensable rating for a scar of the right lower
lateral thigh, effective April 29, 2004, but denied service
connection for headaches and for right knee arthritis, . The
veteran filed a notice of disagreement (NOD) in January 2005,
and the RO issued a statement of the case (SOC) in August
2005. The veteran filed a substantive appeal (via a VA Form
9, Appeal to Board of Veterans' Appeals) in September 2005.
In June 2006 and May 2007, the RO continued the denial of
the claims for service connection, and for an initial,
compensable rating for scar, right lower lateral thigh (as
reflected in SSOCs).
In January 2008, the veteran testified during a
videoconference hearing before the undersigned Veterans Law
Judge at the RO; a transcript of that hearing is of record.
As indicated below, during the hearing, the veteran indicated
his desire to withdraw from appeal his claim for an initial,
compensable rating for scar, right lower lateral thigh.
The veteran also indicated that he wanted the claim for
service connection for right knee arthritis to be
characterized more broadly as a claim for service connection
for a right knee disability. As such, the Board has
recharacteriaed this issue accordingly.
The Board's dismissal of the claim for an initial,
compensable rating for scar, right lower lateral thigh, is
set forth below. The claims for service connection for
headaches and for right knee arthritis are addressed in the
remand following the order; these matters are being remanded
to RO via the Appeals Management Center (AMC), in Washington,
DC. VA will notify the veteran when further action, on his
part, is required.
FINDING OF FACT
On January 16, 2008, prior to the promulgation of a decision
in the appeal, the veteran and his representative requested
withdrawal of the appeal with regard to the claim for an
initial, compensable rating for scar, right lower lateral
thigh.
CONCLUSION OF LAW
The criteria for withdrawal of a Substantive Appeal by the
veteran, with regard to his claim for an initial, compensable
rating for scar, right lower lateral thigh, have been met.
38 U.S.C.A. § 7105(d)(5) (West 2002 & Supp. 2007); 38 C.F.R.
§§ 20.202, 20.204 (2007).
REASONS AND BASES FOR FINDING AND CONCLUSION
Under 38 U.S.C.A. § 7105(d)(5) (West 2002 & Supp. 2007), the
Board may dismiss any appeal which fails to allege specific
error of fact or law in the determination being appealed. A
Substantive Appeal may be withdrawn on the record during a
hearing, and at any time prior to the promulgation of a
decision in the appeal. 38 C.F.R. §§ 20.202, 20.204(b)(1),
(3) (2007). Withdrawal may be made by the appellant or by
his or her authorized representative. 38 C.F.R. § 20.204(a)
(2007).
During the January 16, 2008 Board hearing (p. 2), the veteran
and his representative requested withdrawal of the appeal as
to the claim for an initial, compensable rating for scar,
right lower lateral thigh; hence, there remain no allegations
of errors of fact or law for appellate consideration with
respect to that claim. Accordingly, the Board does not have
jurisdiction to review the appeal as to the claim for an
initial, compensable rating for scar, right lower lateral
thigh.
ORDER
The appeal as to the claim for an initial, compensable
rating for scar, right lower lateral thigh, is dismissed.
REMAND
The Board finds that further RO action on the claims for
service connection for headaches and for right knee
disability is warranted.
Where there is evidence of a current disability, VA will
provide a medical examination or obtain a medical opinion if
the evidence indicates that a current disability may be
associated with military service, but the record does not
contain sufficient medical evidence to decide the claim. 38
U.S.C.A. § 5103A(d)(2) (West 2002 & Supp. 2007), 38 C.F.R. §
3.159(c)(4)(i) (2007); McLendon v. Nicholson, 20 Vet. App. 79
(2006).
A February 1970 service medical record that reflects that the
veteran was injured in a car accident during service. While
the final diagnoses includes only lacerations of the head and
right thigh, this record indicates the veteran was thrown
from the car during the accident and dazed, and that he
briefly passed out in the rescue squad car. In addition,
recent, post-service Seneca medical center records and the
report of a July 2005 United Community Hospital MRI of the
right knee reflects diagnoses of headaches, a medial meniscal
tear with associated meniscal cyst, and mild degenerative
joint disease of the right knee. Moreover, an August 2005
Seneca Medical Center record notes the existence of each
claimed disability as well as the in-service motor vehicle
accident, and a March 2003 Seneca Medical Center record
includes a notation that the etiology of the veteran's right
knee pain is uncertain. As the evidence thus "indicates"
that there "may" be a nexus between current headaches
and/or right knee disability and an in-service event, VA
examinations to obtain medical nexus opinions are warranted.
See McLendon, 20 Vet. App. at 83.
The Board notes that the threshold for determining whether
the evidence "indicates" that there "may" be a nexus between
a current disability and an in-service event, injury, or
disease is a low one (see McLendon, 20 Vet. App. at 83) and,
here, the evidence in the claims file is insufficient to
decide either claim. In this regard, the Board notes that
the September 1972 VA examination during which the reported
that that he had no recurrent headaches and felt great was a
psychiatric examination, and the examiner did not
specifically address headaches, right knee disability, or
any possible relationship between these physical disabilities
and service. Moreover, while a March 2003 right knee X-ray
was normal, the subsequent July 2005 MRI showed multiple
right knee disabilities. The Board points out that service
connection may be granted for a disability diagnosed after
discharge, when all the evidence, including that pertinent to
service, establishes that the disability is due to disease or
injury that was incurred or aggravated in service. See 38
C.F.R. § 3.303(d) (2007).
Hence, the RO should arrange for the veteran to undergo VA
neurological and orthopedic examinations, by appropriate
physicians, at a VA medical facility. The veteran is hereby
advised that failure to report for any scheduled
examination(s), without good cause, may well result in denial
of the claim(s) (as the original claim(s) for service
connection will be considered on the basis of the evidence of
record). See 38 C.F.R. § 3.655 (2007). Examples of good
cause include, but are not limited to, the illness or
hospitalization of the claimant and death of an immediate
family member. Id. If the veteran fails to report for
either scheduled examination, the RO must obtain and
associate with the claims file (a) copy(ies) of any notice(s)
of the date and time of the examination(s) sent to the
veteran by the pertinent VA medical facility.
Prior to arranging for the veteran to undergo further
examination, the RO should give the veteran another
opportunity to present any additional information and/or
evidence pertinent to either or both claims for service
connection. .The RO's notice letter to the veteran should
explain that he has a full one-year period for response. See
38 U.S.C.A § 5103(b)(1) (West 2002 & Supp. 2007); but see
also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2007) (amending the
relevant statute to clarify that VA may make a decision on a
claim before the expiration of the one-year notice period).
The RO should request that the veteran furnish any evidence
in his possession and ensure that its letter to the veteran
meets the requirements of Dingess/Hartman v. Nicholson, 19
Vet. App. 473 (2006) as regards the five elements of a claim
for service connection-particularly, disability ratings and
effective dates-as appropriate.
After providing the appropriate notice, the RO should attempt
to obtain any additional evidence for which the veteran
provides sufficient information, and, if needed,
authorization, following the current procedures prescribed in
38 C.F.R. § 3.159.
The actions identified herein are consistent with the duties
imposed by the Veterans Claims Assistance Act of 2000
(VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002);
38 C.F.R. § 3.159 (2007). However, identification of
specific actions requested on remand does not relieve the RO
of the responsibility to ensure full compliance with the VCAA
and its implementing regulations. Hence, in addition to the
actions requested above, the RO should also undertake any
other development and/or notification action deemed warranted
by the VCAA prior to adjudicating the claims for service
connection for headaches and for right knee disability.
Accordingly, these matters are hereby REMANDED to the RO, via
the AMC, for the following actions:
1. The RO should send to the veteran and
his representative a letter requesting
that the veteran provide sufficient
information, and if necessary,
authorization, to enable it to obtain any
additional evidence pertinent to the
claims for service connection for
headaches and/or for right knee
disability.
The RO should also invite the veteran to
submit all pertinent evidence in his
possession and explain the type of
evidence that is his ultimate
responsibility to submit.
The RO should also ensure that its letter
meets the requirements of
Dingess/Hartman, cited to above, as
regards disability rating and effective
date (as appropriate). The RO's letter
should clearly explain to the veteran
that he has a full one-year period to
respond (although VA may decide the claim
within the one-year period).
2. If the veteran responds, the RO
should assist him in obtaining any
additional evidence identified by
following the current procedures set
forth in 38 C.F.R. § 3.159. All
records/responses received should be
associated with the claims file. If any
records sought are not obtained, the RO
should notify the veteran and his
representative of the records that were
not obtained, explain the efforts taken
to obtain them, and describe further
action to be taken.
3. After all records and/or responses
received are associated with the claims
file, or, the time period for the
veteran's response expires, the RO should
arrange for the veteran to undergo VA
neurological and orthopedic examinations,
by appropriate physicians, at a VA
medical facility. The entire claims
file, to include a complete copy of this
REMAND, must be made available to the
physician designated to examine the
veteran, and the report of the
examination should include discussion of
the veteran's documented medical history
and assertions. All appropriate tests
and studies should be accomplished (with
all results made available to the
examining physician prior to the
completion of his or her report) and all
clinical findings should be reported in
detail. Each physician should set forth
all examination findings, along with a
complete rationale for the conclusions
reached, in a printed (typewritten)
report.
Neurological examination - The physician
should clearly identify any current
headache disability, then should offer an
opinion, consistent with sound medical
principles, as to whether it is at least
as likely as not (i.e., there is a 50
percent or more probability) that such
disability is the result of injury or
disease incurred or aggravated in
service, to include his in-service motor
vehicle accident.
Orthopedic examination - The physician
should clearly identify all current right
knee disability(ies). With respect to
each diagnosed disability, the physician
should offer an opinion as to whether it
is at least as likely as not (i.e., there
is at least a 50 percent probability)
that such disability is medically related
to the veteran's active military service,
to include the in-service motor vehicle
accident.
4. If the veteran fails to report to any
scheduled examination(s), the RO must
obtain and associate with the claims file
(a) copy(ies) of any notice(s) of the
date and time of the examination(s) sent
to the veteran by the pertinent VA
medical facility.
5. To help avoid future remand, the RO
must ensure that all requested action has
been accomplished (to the extent
possible) in compliance with this REMAND.
If any action is not undertaken, or is
taken in a deficient manner, appropriate
corrective action should be undertaken.
See Stegall v. West, 11 Vet. App. 268
(1998).
6. After completing the requested
action, and any additional notification
and development deemed warranted, the RO
should readjudicate the claims for
service connection for headaches an for
right knee disability in light of all
pertinent evidence and legal authority.
7. If any benefits sought on appeal
remain denied, the RO must furnish to the
veteran and his representative an
appropriate SSOC that includes clear
reasons and bases for all determinations,
and afford them the appropriate time
period for response before the claims
file is returned to the Board for further
appellate consideration.
The purpose of this REMAND is to afford due process; it is
not the Board's intent to imply whether the benefits
requested should be granted or denied. The veteran need take
no action until otherwise notified, but he may furnish
additional evidence and argument during the appropriate time
frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999);
Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown,
8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App.
129, 141 (1992).
These claims must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
______________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs